Related Media

Ruling puts sex charges trial on hold

Kayla Fosmire

By CHRIS OLWELL / The News Herald

Published: Monday, April 1, 2013 at 09:12 PM.

PANAMA CITY — The trial of a woman accused of having sexually explicit photographs involving her child is on hold after prosecutors appealed a judge’s ruling barring the jury from seeing certain evidence.

Judge Elijah Smiley issued a ruling Monday on a motion to suppress filed by Ed Quintana, the attorney representing defendant Kayla Fosmire. Smiley ruled Panama City Police violated Fosmire’s Fourth Amendment right to be free from an unreasonable search and seizure when they took three cellphones from her home without a warrant.

Prosecutors Bob Sombathy and Jennifer Hawkins immediately moved to stop the trial, which was scheduled to begin Monday morning, until the 1st District Court of Appeal could hear their argument about why the evidence found on the phones should be allowed in a trial.

Smiley’s ruling “gutted about 50 percent” of the photos from the case, Sombathy said. Quintana declined to comment.

Police were called to a domestic dispute April 28, 2012, at the apartment Fosmire shared with Nicholas Evans, who already has been sentenced to prison. During the investigation, detectives found what they believed to be stolen fishing gear in the apartment, along with several household electronics.

Evans already had been taken into custody when detectives asked Fosmire if they could run the serial numbers on the electronics to determine if they were stolen. An officer testified to picking up a Sony tablet computer that lit up with a picture of fishing gear when he lifted it.

The officer said he asked Fosmire if he could look through the photos on the tablet and she consented. She has testified that she never gave consent, though she signed a statement indicating she did.

PANAMA CITY — The trial of a woman accused of having sexually explicit photographs involving her child is on hold after prosecutors appealed a judge’s ruling barring the jury from seeing certain evidence.

Judge Elijah Smiley issued a ruling Monday on a motion to suppress filed by Ed Quintana, the attorney representing defendant Kayla Fosmire. Smiley ruled Panama City Police violated Fosmire’s Fourth Amendment right to be free from an unreasonable search and seizure when they took three cellphones from her home without a warrant.

Prosecutors Bob Sombathy and Jennifer Hawkins immediately moved to stop the trial, which was scheduled to begin Monday morning, until the 1st District Court of Appeal could hear their argument about why the evidence found on the phones should be allowed in a trial.

Smiley’s ruling “gutted about 50 percent” of the photos from the case, Sombathy said. Quintana declined to comment.

Police were called to a domestic dispute April 28, 2012, at the apartment Fosmire shared with Nicholas Evans, who already has been sentenced to prison. During the investigation, detectives found what they believed to be stolen fishing gear in the apartment, along with several household electronics.

Evans already had been taken into custody when detectives asked Fosmire if they could run the serial numbers on the electronics to determine if they were stolen. An officer testified to picking up a Sony tablet computer that lit up with a picture of fishing gear when he lifted it.

The officer said he asked Fosmire if he could look through the photos on the tablet and she consented. She has testified that she never gave consent, though she signed a statement indicating she did.

In a hearing last week, Smiley indicated he was most concerned with whether the tablet would activate when lifted and he insisted on a demonstration of the device, which didn’t work the way the officer said it had.

But in his ruling, Smiley allowed the jury to see photos found on that device while throwing out photos found on three cellphones seized “without warrant or legal justification” that day.

Smiley found the officer who picked up the tablet and saw the fishing gear had probable cause to suspect the device had additional criminal evidence.

Police got a warrant to search the tablet and the phones 19 days after seizing them, and the application indicated police knew the fishing gear was stolen. The officer who wrote the application testified he had not confirmed, but only suspected, the equipment was stolen.

But the search warrants “were issued because the probable cause was false, misleading and insufficient,” Smiley wrote.

Prosecutors argued the unwarranted search and seizure was legal because it was done to avoid the destruction of the photos. Smiley found no evidence to support that claim, and he noted that in Bay County a judge is always on call to sign a search warrant.

It’s not clear how long the 1st District Court of Appeal will take to rule on the appeal.